[BoulderCouncilHotline] Re: CU South

[Kleisler, Philip]

Good evening,

Thank you for these questions around the CU South and South Boulder Creek flood mitigation projects. We added responses below in red. Please don’t hesitate to let us know if you have any questions or need additional information.

Phil Kleisler, AICP
Senior Planner
[cid:image002.jpg at 01D6BD05.32B13A10]
303-441-4497
Comprehensive Planning Division
1739 Broadway | PO Box 791 | Boulder, CO 80306
Bouldercolorado.gov<https://www.bouldercolorado.gov/>

[Loogo-Combined]



From: Wallach, Mark <WallachM at bouldercolorado.gov>
Sent: Monday, November 16, 2020 10:51 AM
To: Council <council at bouldercolorado.gov>; HOTLINE <HOTLINE at bouldercolorado.gov>
Subject: CU South

I want to thank all those who had a hand in preparing the presentation on CU South for Tuesday’s Council meeting. I am very encouraged to see the progress that has been made on a number of the key issues regarding this project. Nevertheless, the memo does leave me with a number of questions that I will raise here:

1) The document anticipates that a revised draft Annexation Agreement was to be received from CU by this time. Has the term sheet in fact been received? I do not recall seeing it, and that is, or course, a critical document for moving forward. If it has been received, might I request that a copy be forwarded to me (if it has already been forwarded, and I have somehow failed to register that fact, my apologies)? And if there is a new term sheet for annexation, would it be possible to see a slide highlighting the differences between the February, 2020 draft and the new one?
The most current term sheet document was attached to the annexation briefing book (and also linked here<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww-static.bouldercolorado.gov%2Fdocs%2FCU_Response_to_City_Comments_10.5.2020-1-202010051607.pdf%3F_ga%3D2.37924259.169928481.1605561679-561979406.1579630864&data=04%7C01%7CBloomJ%40bouldercolorado.gov%7C58b16244786f4859fd1908d88a857a6d%7C0a7f94bb40af4edcafad2c1af27bc0f3%7C0%7C0%7C637411653177874060%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=buvVFvghDRCxz7dLdpDlfJz2Tzn7d2Qp9KoKPw64TYY%3D&reserved=0> for your convenience). The two most recent comments were from city staff on Aug. 31, 2020 and CU Boulder on Oct. 5, 2020. We expect to be transitioning to a separate document that will only outline what is agreed to, which will be the precursor to the actual annexation agreement. CU Boulder did reference that additional definitions for site and building designs would be available by Nov. 1. The university informed us that it needs until mid-December to work through those definitions.

2) At the last meeting on this subject, there was discussion of researching the feasibility of an upstream option for flood mitigation. Has this process been completed, and what were the results? I did not see any discussion of this subject in the staff memo.

Since the June 16 City Council meeting, staff has made progress on an “upstream analysis” in consultation with council process subcommittee members and designated members of various boards. A detailed summary of this analysis and related conclusions are included in the Open Space Board of Trustees Nov. 18 meeting materials<https://www-static.bouldercolorado.gov/docs/11.18.20_OSBT_Meeting_Agenda_and_Memos-1-202011131501.pdf?_ga=2.115646787.496996236.1605463243-2063150587.1597882133>. Staff will review technical information covered and conclusions reached during this process at the Nov. 18 Open Space Board of Trustees (OSBT) meeting and in other meetings as follows:



  *   Dec. 3: Planning Board update under Matters from Staff
  *   Dec. 16: OSBT (open comment)
  *   Jan. 5: City Council meeting



The flood mitigation project will be the focus of the Jan. 5 City Council meeting, with emphasis on the upstream alternatives work.

3) As CU has recommitted to a primary use of the site for housing (of which I am supportive), I remain perplexed by the use of qualifying language concerning this objective: a “target” of 1,100 residential units, housing as a “predominant” use (Key Issue 42). What is the actual discretion being provided for lower targets? At what level would a reduction in housing be deemed to be a breach of the Annexation Agreement? As we have seen, CU has gone back and forth on this issue several times; as it is a core value in connection with annexation, how do we protect the City from further changes in the primary development purpose supporting annexation?
The “target” language in the comprehensive plan was generally based on density envisioned by the historic land uses on the site (specifically, medium and low density residential). Staff agrees that more specific definitions are needed around phasing of future development plans. The “Land Use Mix” topic on pg. 41 of the briefing book describes that staff is seeking details and definitions around terms like “significant amount of housing” and prohibited uses. The university has since showed openness to reviewing definitions that city staff propose, so we are working on those now.  

4) I note that the community engagement plan includes a meeting on December 2 with the Martin Acres Neighborhood Association, and this is useful. However, is this the only neighborhood that will be impacted by this project? Will special community meetings be scheduled for other neighborhoods as well? At the very least, the residential neighborhoods adjacent to the project have a substantial stake in the outcome, and those concerns should be addressed. The Martin Acres meeting appears to be the only one specifically scheduled for a community (although there are a number of general meetings scheduled as part of the engagement process).
Yes, that’s the only neighborhood meeting scheduled so far. We are reaching out to others (e.g., Frasier Meadows) and mailing postcards to adjacent areas to get the word out about engagement opportunities. We’re also needing to balance the significant public interest in the project with fewer staff resources than usual due to this year’s budget and staff cuts.  

5) The documents prohibit the construction of large sports venues (e.g. football stadiums). As every other venue is diminutive compared to a football stadium, is anything short of that permmitted? Is there any content to the definition of “large” with respect to what is prohibited? I am encouraged that staff will propose definitions regarding this subject, and I urge you to address the number of spectators that may be accommodated for any permitted use.
Thank you for the suggestion. Staff’s initial proposed definition for a large-scale sports venue is on page 40 of the briefing book.

6) The adoption of the concept of a “height ceiling” is excellent, as is the agreement on development on sloping land of 15% or more. I encourage staff to continue to push for the concept of a “limited impact zone” to deal with issues of noise and light mitigation for the adjacent residential neighborhoods.
Noted and thank you for the suggestion. We’ve talked about trying to schedule a neighborhood meeting with the Hy View subdivision to specifically discuss the “limited impact zone” concept.

7) Paragraph 1(B) of the Briefing Book (p. 22) is confusing to me. It requires that, prior to final agreement we conduct “a groundwater assessment which verifies the feasibility and provides the basis for design and construction of implementing measures to convey groundwater through the dam in a manner that replicates existing flow patterns.” Is there even a remote possibility that this will not be feasible? And, if so, how would we then proceed? Should not this study be the predicate for further work on this project, rather than something that occurs somewhere down the line?
The city’s consultants have prepared and submitted a draft baseline groundwater modeling report for city staff review. Groundwater conveyance systems are common to dams and there is currently no indication that an acceptable groundwater system that replicates existing flow patterns will not be feasible.

8) Perhaps staff can explain why CU is pushing back on our request for 90-day review of all plans relating to the development of this project. I do not understand why this should even be an issue. In addition, the position of CU is that they will give “strong consideration” to the City’s “Discretionary Comments” on future development plans. Can we all agree that this is essentially a commitment to hear our comments with no obligation whatsoever to incorporate them into their planning?

Yes, there would not be a hard requirement for CU Boulder to incorporate discretionary comments into future plans. We would assume that CU Boulder would not be comfortable agreeing to comments that the city may make at the future date but are unknown now. Staff would defer to the university if asked about this tonight.



Staff proposed the “compliance review” to ensure there was adequate time to review and confirm the specific terms of the agreement (e.g., building height, wetland setbacks, etc.). The discretionary comments were proposed as a way of acknowledging that there will be other things that the city wishes to comment on down the road. We have similar language around the university “taking into the consideration” the city’s comments in other intergovernmental agreements with CU Boulder like the in Williams Village.  

9) CU rejects our request for PILOT payments (Payments in Lieu of Taxes) on the grounds that they are a tax-exempt entity. This is a response that has no meaning. PILOT exactions are done precisely because the paying entity is not subject to taxes and they are a substitute for the obligation to pay taxes that would be required of a non-exempt entity. The tax-exempt status of CU is not a justification not to pay some form of PILOT to compensate Boulder for the expense of City services that will be provided to CU over the next 50 years, it is the very reason that those payments should be made via a PILOT program.  In this regard,  has there been any analysis of the value of the 2 acres of land to be donated for a public safety facility vs. the amount of revenue that would be generated by a reasonable PILOT program over 50 years vs. the projected expense to Boulder of providing City services to CU South during this period?
We are looking at options for analyzing the financials now.  

10) CU has requested that the entire property be zoned initially as “Public” with adjustments to be made later (page 80 of the memo). This is a bit confusing. Why would we do this and what are the advantages/disadvantages of doing so?
I’m not seeing this referenced on pg. 80, but topic 37 in the term sheet discusses adjusting the land use designations to provide for 129 acres of land designated Public. An adjustment would have been needed to implement the previous flood mitigation variants (e.g., Variant 1, 500-year concept).

11) I remain troubled by the concept of the potential relocation of tennis courts to OS-O land at CU’s sole discretion (both as to the decision to relocate, as well as where to relocate on OS-O land, subject only to the criterion that it be contiguous to CU’s retained property), and at the City’s expense with no cap on the specifications – and thus, the cost – of the tennis courts. Why are we agreeing to such an open-ended expense, which we do here and in a number of other areas? Are we certain that this expense will be covered by a bond issue, or will this require use of General Fund revenues? Are there no environmental issues that should limit CU’s right to select its site for relocation?
The proposed Variant 1, 100-yr flood mitigation project will require removal of the existing tennis courts. It is common practice for Utilities to compensate property owners for impacts of Utilities projects. Specific compensation and funding sources related to the removal will be assessed and addressed as more flood project details are known. The future reconstruction or relocation of the existing tennis courts is not yet resolved.  The OSBT has expressed an interest in preserving all 119 acres of the OS-O for environmental purposes, which will also be a topic included in upcoming engagement.

12) CU proposes that the City can purchase additional OS-O land subject to appraisal. Appraised as what: Wetlands? Open space? High density residential? I think it is important that any such appraisal be based on current and projected zoning for the land, not the highest and best use that could conceivably be applied to it.
The appraisal will establish value of the property. Staff anticipates that the value of the OS-O land would be comparable to similar open space transactions in unincorporated Boulder County.

13) Key Issue 16, the removal of the levee and proposed compensation to CU for the dirt in the levee, keeps returning like a bad meal. If the levee is part of the 80 acres conveyed to the City, the dirt on that land belongs to the City. If we desire to remove the levee and have no constructive use for the fill, it would be appropriate to offer it to CU for their use (and, unlike the first draft of the Annexation Agreement, I would not seek to extract payment for it), but that is the extent of it. If it is our land, it is our dirt.
City and CU Boulder staff are in alignment that the levee material is appurtenant to the land if it’s sold or conveyed to the city. The value of the level fill material would be included in an appraisal.

14) How do we move forward if the water rights to Dry Creek Ditch #2 is an important component of the overall transaction, and CU is not prepared to address it? We should not enter into an Annexation Agreement without a satisfactory resolution of this issue.
That topic is planned for this project and staff expects to have more information about it in the second phase of engagement.

15) Back in June I wrote a Hotline post raising a number of issues relating to annexation; at the time it was not appropriate to address those as we were discussing flood mitigation. Of the issues raised then, and not previously discussed in this post, I have particular concerns with respect to  the following:
   i) The City is responsible for the cost of access and egress road improvements satisfactory to CU. How firm is our understanding of these costs?
As discussed above, the city intends to mitigate any damage resulting from the flood mitigation project, including impacts to the existing access road S. Loop Drive. The city’s flood mitigation project assumes that the city will reconstruct the existing access and specific costs will be determined when an adequate level of design work is complete to inform cost estimates.

   ii) With respect to the services the City is to provide (power, water, stormwater, waste water), the City is to cover “any additional costs caused by the flood mitigation project to access those services.” What does this mean? How will that determination be made? What are the potential costs to the City?
Should the final flood design add additional cost to accessing utilities, such as safe connection to water mains through the flood embankment, the flood utility would consider compensation for incremental costs above what it would cost under existing conditions. As a point of clarification, the city is not a power service provider.

   iii) The City is responsible for any utility upgrades necessary as a result of the flood mitigation project. Do we know what these are, what is the likelihood that they will be necessary, and, if so,  what they will cost?
That particular comment was made by the university in a letter<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww-static.bouldercolorado.gov%2Fdocs%2FSBC_CU_February_4%2C_2019_Annex_App_Cover_Letter_Amended_Jan_16%2C_2020-1-202001171126.pdf%3F_ga%3D2.265002255.169928481.1605561679-561979406.1579630864&data=04%7C01%7CBloomJ%40bouldercolorado.gov%7C58b16244786f4859fd1908d88a857a6d%7C0a7f94bb40af4edcafad2c1af27bc0f3%7C0%7C0%7C637411653177884010%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=CssAyOQq1f28TIRX1DnV7VDB2XjWR7K8BPlB3cOOo48%3D&reserved=0> dated Jan. 16, 2020 narrowly focused on the Variant 1, 500-year concept. No additional costs relating to city services has been identified. Under the present design assumptions it is anticipated that the university will bear all of the costs associated with utilities infrastructure needed for its development. The present design assumptions are not anticipated to increase the cost of serving the property.

   vi) Apparently, the University has an expectation that there will be an “aesthetically pleasing finish” to the flood wall, the expense of which will be borne by the City. Has the cost of this been calculated? What constitutes an aesthetically pleasing finish?
Utilities project generally try to minimize visual impacts to the surrounding area to a reasonable and practical degree. A rendering<https://bouldercolorado.gov/flood/south-boulder-creek-flood-mitigation-project> of what the Variant 1, 100-yr infrastructure might look like is included on the main project webpage.

16) The strongest concern I raised in my prior post is such that I will repeat it below in its entirety:

“What will be the protection against creating an entitlement for development via annexation, and then having CU sell the land for another use or to another user? Particularly now, in light of the pandemic, all plans and projected plans must be regarded  as a bit fluid. It is one thing to annex the land for CU (desirable); it is another to do so and end up with Bob Jones University on the site (not so much). Will there be any reversion to the City of Boulder in the event that financial considerations make it impossible for CU to actually build the campus? If not, and in the event of CU’s election not to proceed (presumably based on financial capability), what is the protection for the City of Boulder against the sale of the property to another educational institution, or even a non-educational user? Since annexation will occur without reference to a site plan, even a conventional “successors and assigns” clause will not protect us from potentially dramatic changes to whatever development we would have expected from CU.”

The annexation process is both legislative and contractual in nature.  The terms of annexation need to be agreed to by both the city and property owner who’s property is being annexed.  We can structure the annexation agreement to address community concerns. For example, a condition could be drafted to require a non-university affiliated entity that may own the property to also comply with city standard development regulations. Specifics will need to be flushed out as the process moves forward, such as how to handle public-private partnerships that the university infrequently pursues.



In the event that financial considerations make it impossible for CU to actually build the campus as anticipated in the annexation agreement, the property could remain undeveloped until such time as it is financially feasible or it could amend the annexation agreement, which will be a new and separate negotiation that will require city council approval.

This is an extraordinarily complex project, and I want to thank all staff working on it for their diligence and hard work in helping to move it towards fruition. I greatly look forward to Tuesday’s conversation, and the opportunity to get clarity on some of these topics.




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